Copyright and Fair Use Guidelines

U.S. law provides protection to authors, creators and publishers of works. It also enumerates specific uses that do not infringe copyright for purposes such as criticism, comment, news reporting, teaching, scholarship or research (e.g. fair use). Middlebury College values and respects intellectual property rights, even as it recognizes an equal responsibility to advance the needs of scholarship and teaching within the framework of the law.

The following are guidelines only and do not constitute legal advice that can be assumed to be applicable to every situation. In some instances, federal court cases result in interpretation of copyright law that pertains to specific acts of copying or to particular media; also, contract law (such as license and purchase agreements) takes precedence over fair use.Basic rules of thumb for fair use copying

On a case-by-case basis, consider these four factors together for each item you desire to copy.(see also Appendix A: Applying the Fair Use Factors)

1. The copy is for nonprofit educational purpose- multiple copies for classroom use are permitted, if the material is an excerpt and does not infringe on the market place- a copy for "scholarship or research" is permitted, if also sufficiently supported by the other factors below

2. Consider the nature of the work- the more creative and less factual a work, the more it is protected by copyright lawsome examples of degrees of protection under the law:

More protection fictionoriginal movies creative works

Less protectionfactual worksnews broadcastscompilations

3. Generally, only a limited portion of a work may be copied, and the portion of a work being copied should be appropriate to the need. - it is usually not permitted to copy an entire or significant portion of a publication or work that is still under copyright without permission of the copyright holder, although there are rare situations where a more extensive use may be permissible.- for creative works, generally only small portions should be copied unless permission has been acquired.- for purely factual items, larger portions may be copied under fair use.

4. Sales of original materials ("the market") should not be affected by copies being made-consider copies for classroom use on case-by-case basis:--- the student would not normally be a potential purchaser of the work unless enrolled in the course--- since the student uses the excerpts as a member of the class, the use probably has very little, if any, effect on the actual or potential market for the work--- copying of materials marketed primarily for educational use (workbooks, etc.) should generally be considered to have a negative effect on the market value of the original material.

Classroom handouts

Copyrighted material can be provided to students in a class if:

1. The instructor is the copyright owner of the material, or2. The copyright owner of the material grants permission, or3. The material is in the public domain, or4. The use of the material is a "fair use" under the law (see above)

Course Packs

The College Store prepares and sells course packs that include photocopied readings.

1. Because copyrighted material is packaged for re-sale, permissions are required for all items included in a course pack, unless the item is in the public domain.

2. Copyright fees are built into the selling price of the compilation.

3. Please contact the Bookstore for course pack requests.

Course Management Systems

Copyright issues must be considered when placing protected materials in an online setting, applying the same factors as for classroom handouts, or seeking permission. In addition:

1. Materials must be limited by password access to those currently enrolled in College courses.

2. Materials can be distributed outside the class or posted on publicly accessible internet sites if and only if copyright permission has been secured.

Course Web Pages

Consider all the following for fair use of copyrighted material:

1. Access- ensure web page is accessible only to students currently enrolled in your course- at end of semester, take down web page with digitized materials, or remove copyrighted materials

2. Attribution- include copyright attribution and citations to original works

3. Brevity- keep portions of copyrighted materials being copied to the minimum amount needed for pedagogical purposes. - keep the number of digitized texts and audiovisual images/clips to the minimum number needed for pedagogical purposes.

4. Effect on market- text, images, etc., on a course webpage should never be extensive enough to substitute for the purchase of an issue of a journal, a book, recording, or a course pack

Freely permitted on a course web page:

1. Links to other works- links from your webpage to another image, document, table, etc., on the Web

2. Your own work, to which you hold the copyright- problem sets, sample exams, class and lecture notes, photographs, video, audio, etc. that you have created- note: you may not hold copyright to published research articles you have authored if, for example, you have assigned copyright to the publisher

3. Works in the public domain- in general, works published in the United States before 1923 may be freely copied - see separate chart for an up-to-date table of different types of materials and when they fall into public domain

4. U.S. Government publications- Federal documents published through the Government Printing Office are not protected by copyright and may be freely copied

Library Course Reserve and Electronic Reserves

Library course reserves are an extension of the classroom. Copies provided via library reserves and electronic reserves (ERes) are considered equivalent to multiple copies for classroom use, limited to use by those enrolled in the course.

1. The library applies fair use principles when making materials available on reserve, whether print or online.

2. All reserve materials are either library-owned or provided by the faculty member.

3. Copyright permissions may be required by the library in instances where a significant number of excerpts from the same publication are included on reserve, or the use of items is repeated from semester to semester (hence, potentially affecting the market place), or a copy of an entire work not owned by the College or library is placed on reserve.

Library online content

Licenses governing the use of library full text databases, electronic journals, e-books, and other digital resources may follow fair use or may have more or, more commonly, less liberal use restrictions.[1] License terms generally prevail over copyright law. By making use of licensed material, you inherently agree to its license terms, even if those terms limit your fair use rights. Library staff can assist in determining what uses are permissible under each license.

Photocopying, Scanning, Digitization

1. Usually, only a small portion of a copyrighted work may be legally copied unless special permission has been secured.- Reprographics and the Library will not copy or digitize an entire book, journal, CD, DVD or film for individual use unless the item is in the public domain, or copyright permission has been acquired- Individuals should be aware that copyright restrictions may apply in making their own copies of entire items, particularly if the item is currently copyrighted and available for purchase. Copies should remain for private use, and never be redistributed or resold.

2. Based on court cases, congressional hearings, and agreements between publishers and the academic community, this typically means the following may be copied for books and journals:- a single chapter, or small portion, of a book- a single article from a journal

3. Libraries may be permitted to make copies of entire works for archival purposes under certain conditions.

4. Particular restrictions apply to media such as music and video (see sections below). -Use of copyrighted films, videos, recordings, and software generally requires permission, purchase or licensing. - Only legally acquired copies should be used in classroom presentations

Web page content

College policy does not permit the posting of copyrighted material on its publicly accessible web servers without permission of the copyright holder.

1. You must have the written permission of the copyright holder copy to distribute any materials of a third party (including software, database files, documentation, articles, graphics files, audio or video files) via the web or other College internet servers.

2. For course web pages, see above guidelines. - Copyright permission must be secured if course web pages are made publicly accessible and they include any copyrighted material.

Video

The display (screening) of films, broadcasts, videos and DVDs is affected by copyright law and licensing agreements.

1. Films, broadcasts, videos, and DVDs may be shown in a face-to-face classroom setting during the regular course of instruction. The item used in the classroom or placed on reserve must be one of the following:

- A legally purchased copy acquired by the College or the course instructor (copyright law explicitly prohibits the presentation of unlawfully made copies of films in educational settings)- A copy made by the College/Library under copyright law for preservation/archival purposes- A rental copy, which may legally be used or placed on reserve as well.

2. Use of materials borrowed from the library is limited to private viewing, with the exception of classroom screenings and viewings directly related to a current College course by students enrolled in that course. Most other showing and viewing of films, videos or DVDs constitute a public performance and permission for the showing must be obtained by paying a licensing fee to the copyright holder or licensing agent.

3. Students who need to obtain public performance licensing for an event should contact the Center for Campus Activities and Leadership (CCAL) in McCullough Hall, ext. 3108. Library staff can provide information about purchase or licensing of films and broadcasts for curricular use.

4. Students and faculty members who plan to schedule screenings should be mindful of the following guidelines:

- Screenings of films or videos for which we hold no non-theatrical public performance rights may only be listed in the calendar if the screening is for a specific course and the number and/or name of the course is also listed in the calendar.

- Films or videos screened for entertainment purposes, or for which the College has non-theatrical public performance rights, may be advertised and promoted only on campus (which includes WRMC-FM, the Campus, and the alumni magazine). None of this promotion may say that the public is invited, nor will there be separate admission prices for ID and non-ID card holders. In general, all off-campus promotion is prohibited, including posters and flyers, unless for those specific titles for which the College has obtained rights.

5. Presentations viewed through ERes or a course web/server site must be restricted to those registered in the course. Access to the materials via ERes or the web shall be removed following the terms in which they are viewed as part of the curriculum.

Music

For musical works that remain under copyright, only portions should be copied for study purposes, as with other printed matter. The law indicates that multiple copies of a "performable unit" should not be provided to all members of a class. Emergency copies of works for rehearsal and performance purposes may also be made, provided purchased copies will be substituted in due course. As with all public domain works, copying is allowed for entire musical works in the public domain.

Commercially distributed and copyrighted recordings (LPs, CDs, licensed downloads) may be played in a face-to-face classroom setting during the regular course of instruction, and may be made available via library reserves as an extension of the classroom.

1. Copyright law indicates an entire recording may be presented ("performed") in a face-to-face teaching situation. Otherwise, only portions of a work are permitted to be copied.

2. Presentations viewed through ERes or a course web/server site must be restricted to those registered in the course. The complete contents of a recording may not be digitized, downloaded and redistributed without copyright permission or licensing fees being paid.

3. Middlebury College agrees with the the Music Library Association's Statement on the Digital Transmission of Electronic Reserves, excerpted below:

The Music Library Association fully supports …[the] view that students enrolled in a class have the educational right to aurally access its assigned musical works both in the classroom and through class reserves. The MLA also believes that the dubbing or digital copying of musical works for class reserves falls within the spirit of the fair use provision of the copyright law.

In light of the above, the Music Library Association supports the creation and transmission of digital audio file copies of copyrighted recordings of musical works for course reserves purposes, under the following conditions:

Access to such digital copies must be through library-controlled equipment and campus-restricted networks.

Access to digital copies from outside of the campus should be limited to individuals who have been authenticated: namely, students enrolled either in a course or in formal independent study with an instructor in the institution.

Digital copies should be made only of works that are being taught in the course or study.

Digital copies may be made of whole movements or whole works.

Either the institution or the course instructor should own the original that is used to make the digital file. The Library should make a good faith effort to purchase a commercially available copy of anything that is provided by the instructor.

The library should remove access to the files at the completion of the course.

The library may store course files for future re-use. This includes the digital copy made from an instructor's original if the library has made a good faith effort to purchase its own copy commercially.

Art Works

Art works may be viewed in a face-to-face classroom setting during the regular course of instruction, and may be made available via library reserves and restricted-access databases such as MDID as an extension of the classroom for the purpose of research and study.

1. Art works photocopied, photographed, digitized or otherwise reproduced as part of a course assignment must be restricted to members of the course.

2. Multimedia presentations that are made public and that include art works must receive copyright permissions/licensing.

3. Contact the Visual Resources Curator for additional information.

Special Collections & Archives

Special Collections & Archives, which includes the Julian W. Abernethy Collection of American Literature, the Helen Hartness Flanders Ballad Collection, Rare Books and Manuscripts, and the Middlebury College Archives, maintains a separate Permissions & Copyright page to provide guidance on the use and publication of its collections, in both paper and digital form.

Appendix A.

Applying the fair use factors

According to an opinion of the Attorney General of the State of Georgia issued in 1996:

Teachers should always act in good faith in copying excerpts for classroom use; and his or her conduct in copying must be such that an objective observer would conclude that the teacher acted in good faith. Therefore, it would be appropriate for teachers to comply with the following factors:

1. Limit the size of the excerpt copied to pedagogical needs.2. Limit the sale of the copies to members of the class.3. Limit the student's cost to the cost of reproducing the materials.

In summary, notwithstanding broad copyright notices that may purport to prohibit any copying without written permission, copying for classroom use is a legitimate activity and a legal right under the fair use doctrine of 17 U.S.C. § 107. Moreover, where a teacher or librarian or other employee of a non-profit institution infringes a copyright with a good faith belief that the copying was a fair use, the Copyright Act requires courts to remit statutory damages if there is an infringement action.[3]

Permissions

In cases where the fair use analysis taken as a whole weighs against using any particular item, the user should seek permission from the copyright holder.

[2] In good faith application of fair use, only portions of works will be copied by College staff for research purposes, library reserve or classroom use, unless a work is in the public domain. Some statements/agreements between publishers, libraries, and educational institutions suggest guidelines that provide a "safe harbor" by limiting the quantity and frequency of copies made for educational purposes. These guidelines are not actual law, and following them assumes (but does not guarantee) that limited classroom use of copies is protected from a copyright suit.

[3] Department of Law, State of Georgia,UNOFFICIAL OPINION. Re: The Scope of the Fair Use Doctrine, 17 USC §107, for making copies for classroom use, for teachers who make copies for research and scholarship, and the potential liability of teachers, librarians and employees of non-profit institutions for exceeding the parameters of fair use. Issued 14-February-1996.